B. Family Protection

Question 1

What may surviving spouse take from dead spouse’s Net Estate?*

Answer 1

Whichever is greater between;

• $50,000
• 1/3 of Net Estate (see below)

Net Estate

• Property in Decedent’s name that could pass under will
• Property that passes in intestacy
• Debts owed to Decedent
• Testamentary Substitutes (see below)

Testamentary Substitutes

• Gifts before/after marriage
• Gifts within 1 year of death (NOT portion that is not subject to federal gift tax)
• Totten trusts
• Survivorship estates (Joint Tenancies/Tenancies by Entirety/Joint Bank Accounts)
• Pension/Profit-Sharing/Compensation plans
• Lifetime transfers
• Property retained through Decedent’s PoA
• NOT life insurance contracts!!!

Question 2

When may Net Estate be reduced?

Answer 2

By property received by;

• Intestacy
• Testamentary substitutes
• Bequests

Question 3

When must Surviving Spouse exercise right of election of his share?

Answer 3

Within 2 years of Decedent’s death

UNLESS court extends time period with good cause

Question 4

When may Surviving Spouse NOT be allowed to exercise right of election of his share?

Answer 4

Wrongful death recovery

Electing vs will involving

• Divorce/Separation (final judgment)
• Surviving Spouse abandoned Decedent until Decedent’s death
• Surviving Spouse failed/refused to support Decedent

Question 5

When are After-Born Children (ABC) entitled to shares of Testator’s estate?*

Answer 5

NO settlement/mention of ABC in will

• ABC is entitled to share (equally)
• UNLESS evidence shows Testator did NOT intend ABC entitled to share

T had NO living child during T’s will
- ABC is entitled to intestate share (as would have passed had T died intestate)

T had living child during T’s will + NO provision for child
- ABC is NOT entitled to share

T had living child during T’s will + provision for child

• ABC is entitled to share as provided in provision
• ABC is entitled to share as if provision was also made for ABC
• ABC is entitled to share as if T died intestate